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Archive for July, 2009

Matthew Yglesias has a pretty sound list of political process reforms: a House and Senate that have elections for committee chairs instead of seniority, ending the filibuster, ending the electoral college, state experimentation with proportional representation for House delegations, DC statehood, and acknowledgement of the unfair/anachronistic character of the Senate.

I’d have a few points to add, a wish list of the possible and the near impossible. What does my wish list say about my preferences? I’m not averse to consensual steps that soften federalism, presidency as weak legislator. I favor more diversity in national offices, several VPs and bigger Supreme Court. I have impulses in both elitist and democratic directions, an appointed amending house, and a more representative House. I’m in favor of more oversight, the Ombudsman, and fewer veto points, end filibusters.

My wish list of the possible would include,

  • A larger house, adding about 200 members to make the representativeness more even across the country. Under this system California’s House delegation would be more comparable to Wyoming’s representativeness levels. While 1 Rep for the 500,000 people in Wyoming compared to 1 Rep per 690,000 people in California might seem a small discrepancy, altogether it adds up to underrepresentation of large states in the House. Consequences follow for committee slots and chairs, as well as in agenda-setting.
  • A larger Supreme Court, maybe 15 to 21 justices altogether – hopefully allowing for a more diverse court in terms of geography, professional background, age, race, religion, gender, etc. To avoid the whole court-packing accusation, perhaps one new justice every ten years starting from 2020.
  • Biennial budgets for the United States. Allowing for longer term planning. Also allowing for more defined periods for budgeting, oversight, and everything else. More here, and here.

Top of my wish list of the near impossible would be,

  • A mandatory constitutional convention every 20, 25, 30, or 50 years. The US Constitution needs to be reviewed and renewed from time to time. Regular national discussion about amendments, and rights, could be at least, educational opportunities – as opposed to Supreme Court vacancies which are ritualistic performances (WSJ). Roe v. Wade? A right to bear arms? Affirmative action? Honestly Senator I haven’t given it much thought. Also, the Supreme Court can’t be the only branch with regular access to the Constitution’s provisions.
  • An independently elected National Ombudsman Office, a kind of cross between the Swedish Ombudsman and perhaps bits of the current inspector-general system. Someone besides the president who is nationally elected and can respond to citizen complaints through inspections, investigations, consultations, and reports. A kind of balance to the imperial presidency that Congress wavers in providing.
  • Broad formal legislative proposal powers for the presidency. The ability of the president to make formal proposals in the House and Senate and in any State House or State Senate. The president as a limited super-legislator allows the opportunity for proposing more coordinated national policy. It permits federalism to cohere more, but with the assent of the relevant state governments, as the president merely gets the power to formally propose. Slightly more powers than a delegate in the House, but less than a voting, full member in the respective legislatures. I wouldn’t mind if this role was carved out into a second vice presidency, or split amongst two or more vice presidents. An added bonus would be a longer line of nationally elected presidential succession – an heir and a spare (as I’ve heard in UK parlance.) The presidential ticket could also be more diverse with a president and two or three vice presidents running together. If this seems over powerful, it could be limited to a certain number of formal proposals during a four year period, maybe 2-16.
  • An entirely appointed amending house akin to the House of Lords. Not because America needs a conservative, hereditary, landed gentry – even the House of Lords does not work that way, at least for the past ten years. I favor the peoples’ peers process – especially the practice of appointing “crossbenchers” who have no party. Given the high quality of Lords’ debates, the expertise of members, and the freedom from electoral accountability – an appointed amending house could make a valuable contribution to the legislative process. So it’s fair to say I reject William F. Buckley Jr.’s quip, “I’d rather entrust the government of the United States to the first 400 people listed in the Boston telephone directory than to the faculty of Harvard University.” I’d probably put a time limit on dispensing with legislation in this house though. Another veto point in the legislative process isn’t the aim; it would be an amending house only.
  • A variety of human rights, human dignity guarantees in the Constitution and/or treaty ratifications – essentially akin to the UK’s incorporation of the European Convention on Human Rights into its domestic law via the 1998 Human Rights Act. The whole, a majority can vote a minority’s rights away thing in California is just one lacuna in rights protection in the US.
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Democracy in America ever so gently critiques Stephen L. Carter’s Washington Post op-ed celebrating profits. Carter writes,

High profits are excellent news. When corporate earnings reach record levels, we should be celebrating. The only way a firm can make money is to sell people what they want at a price they are willing to pay. If a firm makes lots of money, lots of people are getting what they want.

Democracy in America offers,

The question is what high profits mean. If they flow from innovation or arbitrage, they are likely to be socially useful. If they are symptoms of monopoly or information asymmetry, they are probably a sign that something else is amiss.

Profits may also have altogether more sinister sources. Two recent cases I saw on Newsnight, one just plain bad and one extraordinarily bad. The plain bad. Newsnight reports that a London hotel cleaning company has been paying employees below minimum wage. Reportedly, instead of calculating hours worked and paying at least the UK minimum wage (£5.73 an hour), the company used its own mechanism to take into account the number of rooms cleaned; the company’s formula happened to consistently underpay cleaners by a third or half what they should be earning under law given the minimum wage. By underpaying employees the company could win more contracts, and profit.

The extraordinarily bad. Newsnight reports that instead of disposing of toxic waste properly, a firm shipped the dangerous material to the Ivory Coast where it was dumped making tens of thousands of people ill and causing at least a dozen deaths. The motivation of improperly disposing of toxic waste, lower costs and more profit. Even if Newsnight has the particulars wrong (despite the documents, interviews, and videotapes) – I’m not sure the cases have been proven in court, yet – the scenarios are familiar enough. For instances abound, the tobacco industry behaving badly, pharmaceutical companies’ ignoring troubling information about profitable medications. These cases exemplify the caveats that should accompany Carter’s rosy analysis profits. Carter writes,

To the country, profit is a benefit. Record profit means record taxes paid. But put that aside. When profits are high, firms are able to reinvest, expand and hire. And profits accrue to the benefit of those who own stocks: overwhelmingly, pension funds and mutual funds. In other words, high corporate profits today signal better retirements tomorrow.

As Democracy in America notes, the circumstances of profits need be examined in the round. Carter pays glancing attention to potential externalities, writing,

The search for profit has dangers. There are few legal ways to enhance profits other than cost-cutting, improving efficiency or innovating. This can lead to wondrous inventions — the iPod, say — but it can also create serious dislocations, as when companies close plants and lay off workers.

Profits may signal the great things Carter indicates. But profits may also signal monopolitistic behavior, criminal malfeasance, public subsidy and rent seeking, or unsustainable exploitation of a resource for short-term gain. The high profits equals excellent news perspective Carter presents leaves unexamined the social context of profits.

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Debbie Purdy won her case requiring a clarity from UK authorities on assisted suicide prosecutions (BBC). The Law Lords ruled that the Director of Public Prosecutions needs to publish a policy on assisted suicide. He will publish an interim policy by late September and a permanent policy by Spring 2010. The interim policy will identify factors that favor or disfavor prosecution of assisting suicide – factors like coercion or financial gain. Overall, the DPS aims to determine if a prosecution is in the public interest.

Ruling unanimously, the five Law Lords said,

Everyone has the right to respect for their private life and the way that Ms Purdy determines to spend the closing moments of her life is part of the act of living.

Ms Purdy wishes to avoid an undignified and distressing end to her life. She is entitled to ask that this too must be respected.

Changes in law are up to Parliament. Though recent polling suggests the UK public is in favor of permitting assisted suicide for the terminally ill (Times), the House of Lords voted down decriminalization measures. The episode underscores the importance of strong judicial review as opposed to weak judicial review. Strong, weak, and weaker judicial review as Jeremy Waldron explains (html, pdf, cites omitted),

In a system of strong judicial review, courts have the authority to decline to apply a statute in a particular case (even though the statute on its own terms plainly applies in that case) or to modify the effect of a statute to make its application conform with individual rights (in ways that the statute itself does not envisage). Moreover, courts in this system have the authority to establish as a matter of law that a given statute or legislative provision will not be applied, so that as a result of stare decisis and issue preclusion a law that they have refused to apply becomes in effect a dead letter. A form of even stronger judicial review would empower the courts to actually strike a piece of legislation out of the statute-book altogether.

In a system of weak judicial review, by contrast, courts may scrutinize legislation for its conformity to individual rights but they may not decline to apply it (or moderate its application) simply because rights would otherwise be violated. Nevertheless, the scrutiny may have some effect. In the United Kingdom, the courts may review a statute with a view to issuing a “declaration of incompatibility” in the event that “the court is satisfied that the provision is incompatible with a Convention right”—i.e., with one of the rights set out in the European Convention of Human Rights as incorporated into British law through the Human Rights Act. The Act provides that such declaration “does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and . . . is not binding on the parties to the proceedings in which it is made.” But still it has an effect: A minister may use such a declaration as authorization to initiate a fast-track legislative procedure to remedy the incompatibility.(This is a power the minister would not have but for the process of judicial review that led to the declaration in the first place.)

A form of even weaker judicial review would give judges not even that much authority. Like their British counterparts, the New Zealand courts may not decline to apply legislation when it violates human rights (in New Zealand, the rights set out in the Bill of Rights Act of 1990); but they may strain to find interpretations that avoid the violation. Although courts there have indicated that they may be prepared on occasion to issue declarations of incompatibility on their own initiative, such declarations in New Zealand do not have any legal effect on the legislative process.

Lack of clarity in the law can be very harmful. Whether due to laziness, cowardice, or some notion of strategic opacity, legislators and bureaucrats failing to act can lead to uncertainty borne by people like Debbie Purdy and her husband. As I’ve argued before, at some level, judges should have the authority to make rights manifest. We’ll see how the UK fares when the Law Lords becomes the UK Supreme Court later this year (BBC), perhaps the constitutional settlement will shift towards stronger judicial review.

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Recently on the Record Europe journalists discussed the 25th anniversary of the Fontainebleau Summit. One journalist mentioned that for nine of the members of the European Economic Community, the European interest was part of the national interest. But not so for the UK under Margaret Thatcher. The accuracy of the statement in the Fontainebleau context aside,* his point highlights a key fault line in thinking about international politics. The conflict he described is emblematic of the cosmopolitan and liberal internationalist perspective on the one hand colliding with the sovereigntist perspective.

The Peace of Westphalia is an odd way to run a world. Robustly construed notions of state sovereignty were an attempt at stabilizing European politics intimately linked to a fracturing Christendom. A peace from the 17th century ill befits a 21st century interdependent world of WMDs, diseases of global reach, and non-state actors like terrorist organizations, transnational advocacy networks, and multinational corporations. That mismatch between current institutional arrangements and global challenges attracts me to the responsibility to protect (R2P) and Liberty Under Law (PDF).

Besides the growing obsolescence of Westphalia, the finite nature of American power also draws me towards the cosmopolitan liberal internationalist outlook. American power is finite in reach, but also duration. Not to engage in declinism, but recognizing the inevitability of a relative decline in American power as others gain in power is to confront reality. As I see it, part of the job of America’s currently privileged position is to shape the world after America is not #1 anymore. Perhaps America will be half, a third, or a quarter of #1 as China, India, Europe, or other powers emerge during the course of the 21st century. Pax Americana can’t last forever; perpetual hegemonic power is the stuff of egomaniacal fantasies.

I have a few quibbles with the makers of the post-World War II international architecture – mainly around the consideration of nuclear weapons’ management – but altogether establishing the UN System, international financial institutions, and trading architecture were key in setting the course for the following decades of the 20th century. Confronting such long time horizons is prudent when America still has the ability to stress terms that reflect the values of human rights and liberal democracy.

Altogether, my consociational vision of global governance rest on a constructivist account of international politics – Alexander Wendt’s “Anarchy is what states make of it” (PDF) definitely made an impression on me. I clearly reject isolationism as unwise, unsustainable, and unworkable. And while there’s a strand or two of realism in my analysis, it is really only a small one and I’d certainly not count myself as a realist. Simply put, realism’s values are not my values – gender, human rights, regime types, all that matters immensely to me and informs the ideas I have about how America (and others) should relate to this or that country. Also, I’m probably influenced by an underlying current of skepticism about the state as such. I’m anxious to get beyond the state towards global governance that accommodates the interests of more of humanity. My ambivalence about the state brings to mind a post by Brian Tamanaha at Balkinization, Blood on the Hands of the State. The key bit,

The State emerges as a primary villain in both histories [Jonathan Glover’s Humanity: A Moral History of the Twentieth Century and Martin van Creveld’s The Rise and Decline of the State]. Whether in the name of some ideology, or some image of national purity or dominance, or in the name of religion, or simply to plunder, states have time and again massacred their own people, or conscripted their own people and flung them at others to kill and be killed. The number of human lives extinguished by states, and in the name of states, well exceeds a hundred million.

Learn this history and you will see the price patriotism exacts. For many reasons, I feel fortunate to have been born in the United States, but I don’t love my country. It has no love for any of us. A cold, manipulative, object of affection, the state fans patriotism, then asks those who love it deeply to prove their love by dying or sacrificing their limbs for it.

It will not happen in my lifetime, but I look forward to the day when states are no more. As difficult as it is to imagine what a political future without states might look like, the state system is a relatively recent innovation in human history and there is no reason to think we will be burdened with states forever.

The part that made this memorable two years later was Tamanaha’s simple statement, “…but I don’t love my country. It has no love for any of us.” (A side note, I can only aim at being so clear, not using so many weasel words. Maybe this practice is just a signal of irresolution on my part). Even if America has been the most beneficent hegemon (when compared to say, the UK), no single state system steward can disinterestedly, wisely, and fairly manage the global challenges now unfolding. I hope the next iteration of global governance can achieve far more with far less cost in bloodshed and villainy than the state system has exacted.

*The journalist making the comment reported on Fontainebleau for Le Monde and France certainly hasn’t been shy about pursing the Common Agricultural Policy, amongst other things in its vision of the European interest.

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A BBC documentary (the NHS: A Difficult Beginning) on the founding of the UK’s National Health Service mentioned a word I haven’t heard in the American context: solidarity. Founded in 1948 the UK had come out of World War II and was still under a rationing regime. This concept of solidarity intersects with the question, what does it mean to be a member of a community? For reasons based in Joseph Raz’s articulation of the interest-based theory of rights, I believe healthcare is a human right. But solidarity and human rights aside, why a national healthcare system?

National healthcare would allow more information and human wellbeing to pull in the same direction, as opposed to opposite directions, altogether advancing the interests of the individual. In terms of planning – I’ve been increasingly thinking there’s a need for a genetic census (perhaps via sampling) – knowledge of what percent of the population has what probability for developing what kinds of disease could help planning and prevention efforts. Furthermore such information could be used for the individual’s benefit in healthcare provision, as opposed to the individual’s detriment in insurance denials or rescissions. We are moving towards an era of individualized medicine; individualized medicine seems incompatible with health insurance that works on ignorance. In every instance I can imagine, more information about disease probabilities works towards maximizing the profit of insurance companies (at the expense of the individual) as they build low risk, if not riskless, pools of insured. As far as I understand, larger risk pools are inherently superior to smaller risk pools.

An aspect of my perspective probably stems from the view that there’s a great deal of arbitrariness involved in illness and disease. I’m loath to assign fault as opposed to simply saying this person needs care. Thus my decision-making process is a closed circuit, well before Kyle at Vogue Republic’s (albeit brief) consideration of who is suffering what ailments why. Which is not to say causes of illness are irrelevant and should go unaddressed by public policy – but compartmentalizing healthcare for the individual and public health for the community (partially?) reconciles the potential conflict for me.

With regard to leading healthy lives, public health efforts would need to be stepped up. But why would that be problematic? Suppose we instituted taxes on empty calorie foods, excessive saturated fat, and corn syrup tomorrow – what would be losing exactly? (Becker and Posner‘s blog posts on similar taxes were particularly unconvincing.)

One element of the public not taking responsibility of their health is preventative care requires access to healthcare. Imagine the negative feedback loops – one was mentioned in the BBC program. A doctor discussed his change in view from opposing the founding of the NHS to supporting it (the British Medical Association was opposed to the founding of the NHS). He related the story of parents who gave their child castor oil rather than visiting the doctor. As a consequence appendicitis was not caught at an early stage because castor oil was cheaper than a visit to the doctor. The program also discussed how initially, the NHS was inundated by a British public in need of simple things from glasses to dentures; more serious ailments were also discussed. Pre-NHS a backlog of poor health and untreated illness had built up, all due to the fact that underlying disease and suffering had gone untreated.

The argument that gives me pause is Megan McArdle’s contention that healthcare innovation would suffer as a consequences of national healthcare. I really do need to think about and read about that line of argument further. Two fairly unresolved posts in one day – I really do prefer when, like Sister Aloysius Beauvier in Doubt, “I have my certainty!” Little certainty today though.

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I’ve been kicking around this idea about belief’s relationship to good government in my head since Monday without resolution. On Newsnight, a quote of Nigel Lawson’s was mentioned, “the NHS is the closest thing the English have to a religion.” I wonder to what extent belief in the potential for government effectiveness and productivity impacts actual government effectiveness and productivity. To what extent is there a positively reinforcing cycle of beliefs and expectations of good government that actually helps governments become more effective and productive? Katrina and George W. Bush come to mind. Could this be a kind of placebo effect where believing contributes to making something so? Besides the placebo effect, the other instance I recall is linguistics researchers finding that an individual’s language acquisition is impacted by broader social ideas about language acquisition – contexts that are friendly to language acquisition contribute to individuals’ language acquisition and vice versa (Wikipedia). Of course, this notion hits upon a longstanding issue of the social sciences, humans are self-reflexive.

This belief in government helps government work view has some bearing on my answer to Charlemagne’s Notebook’s question, “Does Sweden’s nanny state only work in Sweden?” Johan Norberg, a classical liberal Swedish blogger, replies yes,

Sweden’s bureaucracy is one of the most impressive in the world, and it has been for a couple of hundred years—that’s what makes it possible to have a public sector this size. This is something foreigners rarely understand. They think that our big government makes the country run well, whereas it is the other way around—the fact that it works well makes it possible to have a big government.

If countries don’t already have a tradition of an efficient, non-corrupt bureaucracy with an impressive work ethic a larger government only means more abuse of power and more waste of money. I often try to convince Americans, no, more government in the US would not get you a big version of Sweden, it would get you a big version of the US Postal Service.

My reply is no, Sweden’s nanny state can work outside of Sweden. After all, what’re the sources of Sweden’s “tradition” if not effort, hard work, expectations, and beliefs? The big government and well run country seem to be mutually reinforcing rather than having a strictly one way causal arrow. (Also, I’m not into maligning the USPS offhandedly – thinking about its larger historical significance, it is quite a feat/public good to have a continental postal service for a low, flat rate price. The advent of email certainly does not redound to the USPS’ discredit.) Although, having written all this about belief, I’d just add, belief is by no means sufficient (the Great Leap Forward comes to mind). Belief is worth considering though.

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A classmate once commented to me, half jokingly, that we’re all essentially a byproduct of successful sperm and eggs. Human experiences being epiphenomena of the success of sperm and eggs seems like reductio ad absurdum to me, but David Brooks essentially embraces this outlook in his recent column. Brooks’ piece, the Power of Posterity, is a reply to a question posed by a reader of Marginal Revolution, “A freak solar event “sterilizes” the half of the planet (people, animals, etc) facing the sun. What happens?” Altogether, I find Brooks’ reply troubling.

People live in a compact between the dead, the living and the unborn, and the value of the thought experiment is that it reminds us of the power posterity holds over our lives.

Brooks comes distressingly close to intoning, we’re all just successful sperm and eggs engaged in an effort to have more successful sperm and eggs. Yes, the observation that we’re successful sperm and eggs has some element of truth to it, but in its reductivist terms a great deal of the human experience falls by the wayside. In fact, all human experience falls away – all thinking, all art, all pleasure, all pain is set aside. In this outlook, humanity itself boils down to a pair of cells.

Brooks goes on to place human ambition writ large in his power of posterity model.

The secular world would be shattered, too. Anything worth doing is the work of generations — ending racism, promoting freedom or building a nation. America’s founders, for example, felt the eyes of their descendants upon them. Alexander Hamilton felt that he was helping to create a great empire. Noah Webster composed his dictionary anticipating that America would someday have 300 million inhabitants, even though at the time it only had 6 million.

These people undertook their grand projects because they were building for their descendants. They were motivated — as ambitious leaders, writers and artists are — by their hunger for immortal fame.

Without posterity, there are no grand designs. There are no high ambitions. Politics becomes insignificant. Even words like justice lose meaning because everything gets reduced to the narrow qualities of the here and now.

If people knew that their nation, group and family were doomed to perish, they would build no lasting buildings. They would not strive to start new companies. They wouldn’t concern themselves with the preservation of the environment. They wouldn’t save or invest.

There would be a radical increase in individual autonomy. Not sacrificing for their own society’s children, people would themselves become children, basing their lives on pleasure and ease instead of meanings to be fulfilled.

Brooks’ piece also troubles me because human dignity is not contingent on me having children, nor is human dignity contingent on my community, or even my hemisphere, having children; human dignity is not for utility’s sake. Thus anti-racism and social justice are not merely a commitment to posterity; efforts to advance social justice are not for the achievement of glorious immortality through remembrance. In Brooks’ estimation it is as though justice campaigners are like the Ancient Greek heroes – abolish slavery so that your name will ring down the ages. How about end slavery because it is wrong? While one consequence may be some measure of fame and esteem, those are incredibly incomplete and unsatisfactory reasons to pursue justice; it seems insulting to put Wilberforce and Wollstonecraft in a category of fame seekers. Or put it another way, while I’m sure the Nobel Peace Prize is quite nice, focusing on that award kind of misses the larger point of pursuing peace. Justice, human rights, and other such ambitious goals – these are overarching values that represent a commitment to humanity qua humanity.

At Marginal Revolution, Tyler Cowen remarks that,

To some of you these mental exercises may seem silly. Indeed they are silly. But what’s wrong with silly? Such questions get at the stability of social order, the sources of that stability, and the general importance of demography and intergenerational relations. Those are all topics we don’t think enough about. Because we’re not silly enough.

I agree with him. Answering “silly” questions is a useful exercise (read: fun) and is also revealing. How does one go about answering “What motivates people?” It resembles the observation that the schools of psychoanalysis reveal a great deal about their founders’ lives (Freud, Adler, and Frankl respectively the will to pleasure, the will to power, and the will to meaning). Altogether, Brooks’ reply implies near utilitarian and certainly communitarian undertones that I have grave reservations about.

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